Citation Nr: 0803393
Decision Date: 01/30/08 Archive Date: 02/08/08
DOCKET NO. 05-34 312 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUE
Entitlement to service connection for an eye disorder,
claimed as chronic conjunctivitis.
REPRESENTATION
Appellant represented by: Wisconsin Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Counsel
INTRODUCTION
The veteran served on active duty from August 1988 to April
2003.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an April 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Milwaukee, Wisconsin.
FINDINGS OF FACT
The veteran does not have a current eye disorder which is
etiologically related to his eye problems in service.
CONCLUSION OF LAW
A claimed eye disorder, to include as due to or manifested by
conjunctivitis, was not incurred or aggravated during
military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A,
5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159,
3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Preliminary Matters: Duties to Notify & to Assist
Upon receipt of a substantially complete application for
benefits, VA must notify the claimant what information or
evidence is needed in order to substantiate the claim and it
must assist the claimant by making reasonable efforts to get
the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38
C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002). The notice required must be provided to the
claimant before the initial unfavorable decision on a claim
for VA benefits, and it must (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38
C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App.
112, 120 (2004).
The RO provided the appellant with VCAA notice in December
2004, prior to the initial decision on the claim in April
2005. Therefore, the timing requirement of the notice as set
forth in Pelegrini has been met and to decide the appeal
would not be prejudicial to the claimant.
Moreover, the requirements with respect to the content of the
notice were met in this case. The RO informed the veteran in
the notice letter about the information and evidence that is
necessary to substantiate his claim for service connection.
Specifically, the December 2004 letter stated that the
evidence must show that that he had an injury in military
service or a disease that began in, or was made worse during
military service, or that there was an event in service that
caused injury or disease; that he has a current physical or
mental disability; and, that there is a relationship between
his current disability and an injury, disease, or event in
military service. Additionally, the September 2005 statement
of the case (SOC) notified the veteran of the reasons for the
denial of his application and, in so doing, informed him of
the evidence that was needed to substantiate his claim.
In addition, the RO notified the veteran in the 2004 letter
about the information and evidence that VA will seek to
provide. In particular, the December 2004 letter indicated
that reasonable efforts would be made to help him obtain
evidence necessary to support his claim and that VA was
requesting all records held by Federal agencies, including
service medical records, military records, and VA medical
records. The veteran was also informed that a medical
examination would be provided or that a medical opinion would
be obtained if it was determined that such evidence was
necessary to make a decision on his claim.
The RO also notified the veteran about the information and
evidence that he was expected to provide. Specifically, the
2004 letter notified the veteran that he must provide enough
information about his records so that they could be requested
from the agency or person that has them. It was also
requested that he complete and return the enclosed VA Form
21-4142, Authorization and Consent to Release Information to
the Department of Veterans Affairs, if there were any private
medical records that he would like VA to obtain on his
behalf. In addition, the April 2006 letter indicated that it
was still the veteran's responsibility to support his claim
with appropriate evidence.
The 2004 letter also requested that the veteran send to VA
any medical reports that he had. In addition, the Board
finds that the appellant was otherwise fully notified of the
need to give to VA any evidence pertaining to his claim. In
this regard, the RO has informed the appellant in the rating
decision and SOC of the reasons for the denial of his claim
and, in so doing, informed him of the evidence that was
needed to substantiate that claim. As noted above, because
each of the four notice requirements has been fully satisfied
in this case, any error in not providing a single notice to
the appellant covering all content requirements is harmless
error.
Further, through his statements, the veteran demonstrated his
understanding of what was necessary to substantiate his
claim, i.e., any notice defect was cured by the veteran's
actual knowledge. See Sanders v. Nicholson, 487 F.3d. 881
(Fed. Cir. 2007; see also Simmons v. Nicholson, 487 F.3d 892
(Fed. Cir. 2007). In any event, the Board finds that a
reasonable person could be expected to understand from the
notice what was needed to substantiate his claim and thus the
essential fairness of the adjudication was not frustrated.
Id. As such, the Board concludes that, even assuming a
notice error, that error was harmless. See Medrano v.
Nicholson, 21 Vet. App. 165 (2007); Mayfield v. Nicholson, 20
Vet. App. 537, 543 (2006).
Further, during the pendency of this appeal, on March 3,
2006, the United States Court of Appeals for Veterans Claims
(Court) issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above,
which held that the notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; 3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
In the present appeal, the veteran was provided with notice
of what type of information and evidence was needed to
substantiate his claim for service connection for pes planus,
as well as notice of the type of evidence necessary to
establish a disability rating or an effective date for the
disability on appeal in a letter issued to him in March 2006.
Therefore, the Board finds no prejudice to the veteran in
proceeding with the issuance of a final decision. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the veteran has been prejudiced thereby). Moreover,
herein the Board concludes below that the veteran is not
entitled to service connection for an eye disorder. Thus,
any question as to the appropriate disability rating or
effective date to be assigned is rendered moot.
In addition, the duty to assist the appellant has also been
satisfied in this case. The veteran's service medical
records were reviewed by both the RO and the Board in
connection with his claim. In addition, under the VCAA, VA
is obliged to provide an examination or obtain a medical
opinion when the record contains competent evidence that the
claimant has a current disability or signs and symptoms of a
current disability, the record indicates that the disability
or signs and symptoms of disability may be associated with
active service, and the record does not contain sufficient
information to make a decision on the claim. 38 U.S.C.A. §
5103A(d). The evidence of a link between current disability
and service must be competent. Wells v. Principi, 326 F. 3d
1381 (Fed. Cir. 2003); Charles v. Principi, 16 Vet. App. 370
(2002). In the present case, a VA examination report with a
medical opinion dated in December 2005 is of record.
Under the circumstances, the Board finds that there is no
reasonable possibility that further assistance would aid the
veteran in substantiating the claim. Hence, no further
notice or assistance to the veteran is required to fulfill
VA's duty to assist him in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001).
Factual Background
The veteran's service medical records show that on enlistment
examination of August 1988, clinical evaluation of the eyes
was normal and the veteran reported that he did not
experience any eye trouble. In mid-November 1990, the
veteran was treated for acute conjunctivitis of unknown
etiology, contracted while on deployment, which was described
as resolving by late November 1990. An entry dated in
November 1996 indicates that the veteran had complaints of
redness and puffiness of the left eye, assessed as a stye,
which was treated and resolved. Clinical evaluation of the
eyes conducted in August 1998 was normal. In late September
2000, the veteran was seen with complaints of red itchy eyes
with pustular drainage, which started in Peru, and he was
treated for conjunctivitis. In October 2000, the veteran was
treated for bacterial conjunctivitis, described as responding
well to treatment. A separation examination report, dated in
March 2003, indicates that the veteran checked a box
indicating a history of eye trouble. This was explained as a
history of conjunctivitis in 1990 with recurrences.
The veteran filed his original claim for an eye disorder,
identified as conjunctivitis in August 2004.
A VA examination of the eyes was conducted in December 2005
and the claims folder was reviewed. The veteran reported
that he had been experiencing conjunctivitis on and off and
that it had been getting worse since military service. The
examiner observed that the service medical records showed
treatment for acute conjunctivitis without further mention of
conjunctivitis in the succeeding years. The veteran reported
that he and others developed eye problems while flying in a
helicopter in Africa which went through a cloud of
unidentified matter. He complained of impaired night vision
and sensitivity to sunlight. The report indicated that the
veteran was a production worker in a plant, treating paper
with silicone to make it slippery. On examination, there was
redness of the eyes.
A diagnosis of allergic conjunctivitis was made. The
examiner opined that it was less likely than not related to
conjunctivitis which was treated on active duty. The
examiner suggested that the eye condition could be due to the
veteran's production job work environment.
Legal Analysis
The veteran maintains that his eyes are constantly bloodshot,
watering and uncomfortable, warranting service connection for
an eye disorder.
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in the
line of duty or for aggravation of a pre-existing injury or
disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. §§ .303, 3.304, 3.306 (2007). In order to
establish service connection for a claimed disorder, there
must be (1) medical evidence of a current disability; (2)
medical, or in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999).
In this case, the service medical records show that the
veteran was treated for periodic occurrences of
conjunctivitis, which were treated in 1990 and 2000. The
record contains a current diagnosis of allergic
conjunctivitis made upon VA examination conducted in December
2005. Accordingly, the critical inquiry involves whether an
etiological relationship exists between the eye problems
treated in service and the currently diagnosed eye disorder,
allergic conjunctivitis. In this regard and as will be
discussed in detail herein, the Board believes that the most
probative evidence consists of the contemporaneous medical
records themselves as well as the VA medical opinion
furnished in 2005.
Direct service connection generally requires evidence of a
current disability with a relationship or connection to an
injury or disease or some other manifestation of the
disability during service. Boyer v. West, 210 F.3d 1351,
1353 (Fed. Cir. 2000). A disorder may be service connected
if the evidence of record reveals that the veteran currently
has a disorder that was chronic in service or, if not
chronic, that was seen in service with continuity of
symptomatology demonstrated subsequent to service. 38 C.F.R.
§ 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).
Evidence that relates the current disorder to service must be
medical unless it relates to a disorder that may be
competently demonstrated by lay observation. Savage, 10 Vet.
App. at 495-97. For the showing of chronic disease in
service, there is a required combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word "chronic." 38 C.F.R. § 3.303(b).
In this case, the only opinion of record which addresses the
matter of etiology between the claimed eye disorder, and
service, to include eye problems treated therein, was offered
by a VA examiner in 2005. The VA examiner, having elicited a
history from the veteran, reviewed the evidence of record and
having performed a medical evaluation of the veteran, opined
that it was less likely than not that the currently diagnosed
allergic conjunctivitis was related to conjunctivitis which
was treated on active duty. The examiner suggested that the
currently manifested eye disorder could be due to the
veteran's production job work environment. There has been no
contrary competent medical opinion offered for the record.
The veteran maintains that he has suffered from
periodic/episodic conjunctivitis since service. However,
there is no record of recurrence of conjunctivitis in service
after October 2000 and it has been determined that the
currently manifested and diagnosed eye problem, allergic
conjunctivitis, diagnosed in 2005, is not related to service,
or eye problems sustained therein. The Board notes that, as
a lay person, the veteran is not competent to establish a
medical diagnosis or show a medical etiology merely by his
own assertions because such matters require medical
expertise. See 38 C.F.R. § 3.159(a)(1) (Competent medical
evidence means evidence provided by a person who is qualified
through education, training or experience to offer medical
diagnoses, statements or opinions); see also Duenas v.
Principi, 18 Vet. App. 512, 520 (2004); Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992). Since he is not
professionally qualified to offer a diagnosis or suggest a
possible medical etiology, he is not competent to provide the
required medical nexus evidence.
For those reasons, the Board finds that entitlement to
service connection for conjunctivitis is not warranted and
the claim must be denied. The Board also considered the
doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b).
However, as the preponderance of the evidence is against the
appellant's claim for service connection for an eye disorder,
claimed as conjunctivitis, the doctrine is not for
application. See also, e.g., Ortiz v. Principi, 274 F. 3d
1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
Service connection for an eye disorder, claimed as
conjunctivitis, is denied.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs